• Likely to appeal case
• State lawyer to consult Khama
• Judges see nothing wrong with the Standing
The Attorney General and the ruling Botswana Democratic Party (BDP) have lost their bid to force Parliament to endorse president Ian Khama's choice of Vice President and vote the Speaker and Deputy by show of hands.
Gaborone High court dismissed the case with costs on Friday maintaining the status quo - that a secret ballot in the election of Speaker and Deputy Speaker of the National Assembly and endorsement of the Vice President will continue to be used as has been before. "A secret ballot is a hallmark of a free and fair election within our representative democracy. Our national election is premised on secret ballot, as stated in the Electoral Act: which derives its validity from the constitution,” Justice Michael Leburu pronounced when reading the judgment by panel of three judges that included Justice Singh Walia and Justice Tebogo Tau.
The attorney General had filed an urgent application before the high Court last week challenging the constitutionality of and requesting it to set aside current Standing Orders of parliament that were amended in August this year, saying they were unconstitutional.
When delivering the judgement Justice Leburu said although in their heads of argument the Attorney General and BDP attorneys submitted that Section 39 of the Constitution does not provide for a procedure with respect to the endorsement of the Vice President, in amplification stating that Standing Orders introduced endorsement by secret ballot, hence have an effect of amending, modifying and altering the provisions of Section 89 of the Constitution, they were in fact not true, saying due to its broadness and over-arching tendency, Constitutional provisions cannot by any stretch of imagination, cater or legislate for every conceivable minute detail. “The constitution as an enduring supreme law is crafted in broad, inclusive and open ended language, values and beliefs associated with democracy and the rule of law,” he said.
According to Justice leburu, although the Attorney General and the BDP stated that sections 59 (1), 60 (1), and 74 (1) of the constitution envisaged the election of the Speaker, the Deputy Speaker by show of hands and through simple majority, their submissions were false. “I have studiously perused through the said sections and I have not found the requirement for voting by show of hands,” he said.
The same, he said, applied for section 74 (1), which states that any question proposed for the decision in the National Assembly shall be determined by a majority of the votes of members present and voting. The judge also said that although the Attorney General and the BDP have averred that the introduction of additional requirements for the election of the Speaker, the Deputy Speaker and the endorsement of the Vice President namely secret ballot, nomination forms and others are unconstitutional the nature of standing orders, though not statutory instruments they are nonetheless rules which govern legislative proceedings. “Such rules, I venture to postulate, are internalised as binding and valid rules by the assembly," he said, adding that Standing Orders have all the attributes of delegated legislation and in any event such Standing Orders are made by the legislature arm of government in order to regulate its proceedings.
In determining the constitutionality of the Standing Orders, the court said it is a fundamental principle of the constitution that everyone has a right to take part in the government of their country through freely choosing representatives, saying the right to vote is an indispensable feature of our democracy. “It is, therefore, important that voting must be free from intimidation and coercion. The constitution recognises the right to vote in terms of section 67," he said.
According to the judge, though the Constitution envisages voting, but does not spell out the method thereof, in order to put such voting process into effect, the standing orders have been legislatively crafted and created in order to give effect or put into operation the voting process as envisaged in the constitution. "Such Standing Orders do not in my view amend, alter, vary or modify any constitutional provision. In effect, they put flesh to the skeletal framework and does not in any way shape or form amend, alter, vary and modify the constitution,” he said.
He also said that Parliament was entitled to regulate its own internal process in terms of the residual powers granted by section 76 (1), which acknowledges that somewhere within the constitution, a procedure would be provided that regulates Parliament. Where such procedure is stated like in the election of the President and Specially Elected members, then Parliament cannot through Standing Orders amend or vary such procedure. Having determined that the Standing Orders are intra vires, the court ruled that it had no jurisdiction to enquire on the lawful internal processes of the National Assembly because it would be otherwise intruding into the affairs of another branch of government. "It therefore becomes unnecessary to consider other legal points raised,” he said.
The court case has delayed the endorsement of the Vice President, the election of the Speaker and the Deputy Speaker and the commencement of the 11th Parliament. State Attorney Mogakolodi Chamme could not confirm whether the Attorney General would appeal the matter or not. “I still have to sit and study the judgement, besides the decision to appeal doesn’t entirely rest with me, I act on instructions,” he said.
Meanwhile, a source within the BDP, states that BDP MPs who hold majority of the seats and have the power to determine whether Margaret Nasha returns to the National Assembly as Speaker are a scared lot. Word is that they have been summoned one by one and given stern instructions not to vote for the Nasha or any member of the opposition.
As things stand, should President Khama choose to appeal the case, the will be further delay in the resumption of Parliament business and engender a spirit of national crisis never seen in this country.